Volume 43 — Michigan Reports

Clair. Assumpsit. Defendant brings error. The statute prohibiting business on Sunday applies to anything that can be done on week-days, State v. Conger 14 Ind. 396; Adams v. Himmel 2 Doug. (Mich.) 76; a Sunday contract cannot be ratified, Tucker v. Mowrey 12 Mich. 378.

Replevin. Plaintiff brings error. .At common law suit must be brought in plaintiff’s full name, though changes have been made by statute; .Stat. 3 and 4, Wm.

Trespass. Defendant brings error. Title cannot pass until there is some specific identification of the property bargained for, Golder v. Ogclen 15 Penn. St. 528; Hutchinson v. Hunter 7 id. 140; Waldo v. Belcher 11 Ired. 609; Merrill v. Hunnewell 13 Pick. 213; Scudder v. Wors-' ter 11 Cush. 573; Wilkinson v. Holiday 33 Mich. 386; Hahn v. Fredericks 30 Mich. 223; First Nat.

Assumpsit. Defendants bring error. Keeovery cannot be had under the common counts for work and materials furnished under a special contract, unless the defendant has so far fulfilled its terms that his liability is solely to pay money, and in other cases recovery must be had on a special count for damages for breach of contract, Begole v. McKenzie 26 Mich. 470; Crane v. Grassman 27 Mich. 444; Butterfield v. Seligman 17 Mich. 98; Chitty’s PI. 340; Selw.

Action on bail bond. Plaintiff brings error. An execution is not invalidated by immaterial errors whereby it varies from the judgment, Sanders v. Kentucky Ins. Co. 4 Bibb 471; McMahan v. Colclough 2 Ala. 68; Lewis v. Avery 8 Yt. 289; Avery v. Lewis 10 Yt. 332; Look v. Duncan Litt. Sel.

<p>Appeal from Kalamazoo.</p> <p>Bill in aid oe execution. Dismissed as to defendant Prosser. Complainants appeal.</p> <p>cited as to the fraudulent nature of the transfer to Prosser, Pursel v. Armstrong 37 Mich. 330; Wright v. Brandis 1 Ind. 336; Mills v. Hoiueth 19 Tex. 259; Ga/rahy v. Bayley 25 Tex. (Supp.) 294; Green v. Tantum 19 N. J. Eq. 109; Atioood v. Impson 20 id. 150; Fuller v. Sears 5 Yt. 530; there is no inflexible rule as to the amount of evidence required to prove a fraudulent transfer, Bump Fr. Con. 583; Reed v. Noxon 48 111. 323; Smit v. People 15 Mich. 497.</p> <p>Fraud by an execution defendant in transferring his property does not affect the transferee unless the latter is shown to have been concerned in it, Búmp Fr. Con. 195; Miller v. Kirby 74111. 242; Hatch v. Jordon id. 414; Griclley v. Bingham 51 111. 153; Green v. Tanner 8 Met. 411; Leach v. Francis 41 Yt. 670; Fifield v. Gaston 12 la. 218; Ruhl v. Phillips 48 N. Y. 125; Waterbury v. Stwrtevant 18 Wend. 353; Palmer v. Henderson 20 Ind. 297; Hamilton v. Staples 34 Conn. 316; Merch. Bank of Neioton v. Northrup 22 N. J. Eg. 58; Du/rkee v. Chambers 57 Mo. 575; Byrne v. Becker 42 Mo. 264; Preston v. Turner 36 la. 671.</p>

Trespass on the case. Plaintiff brings error. A sheriff’s liability for falsely returning a fieri facias may depend on his knowledge of facts which should cause him to try to find property, Bell v. Com. 1 J. J. Marsh. 553; it is negligence per se if a notary fails to ask the holder of a dishonored bill the indorser’s address, Harris v. Robinson 4 How. 345; a sheriff could inquire of the bail for the address of his principal, Petersdorff on Bail, p, 405.

Information for “grand larceny.” Respondent was convicted. Joinder of horse-stealing and simple larceny in one count is void unless horse-stealing is made larceny by law, State v. Nutting 16 Vt. 261; indictments for cattle-stealing cannot be maintained as for a common law larceny, State v. Ripley 2 Brev. 300; a sentence to longer imprisonment than is allowed by law must be reversed and the prisoner set at liberty, Elliott v. People 13 Mich. 365; Crippen v. People 8 Mich.…

Bastardy proceedings do not lie where the bastard lives out of the State when they are instituted, McFadden v. Frye 13 Allen 472.

<p>Error to Manistee.</p> <p>Information for assault with intent to commit rape. [Respondent was convicted.</p>

<p>Error to Recorder’s Court, of Detroit.</p> <p>Information for bigamy. Respondent was convicted.</p> <p>An indictment must allege all facts necessary to a conviction, State v. Wilson 2 Mill 135; State v. Philbrich 31 Me. 401; People v. Aro 6 Gal. 207; Marble v. State 3 Ind. 535.; Dillingham v. State 5 Ohio St. 280; State ■ v. Henderson 1 Rich. 179; Tennessee v. Fields Mart. & Y. 137; and facts not charged will not be inferred, Meca's v. Com. 2 Grant’s Cases 385; an indictment for bigamy should allege the first marriage to have been lawful, King v. State 40 Ga. 244; and that the second was unlawful, State v. Palmer 18 Yt. 570; where a statute makes an act “willfully and maliciously” done, a crime, it is not enough to allege that it was done “feloniously and maliciously,” State v. Card 34 N. H. 510; State v. Delue 1 Chand. (Wis.) 166; State v. Roberts 3 Brev. 139; where a statute creating a crime contains an exception, the indictment must negative it, Com. v. Maxwell 2 Pick. 139; Com. v. Fitchburg Railroad Co. 10 Allen 189; State v. Barker 18 Yt. 195; State v. Abbey 29 Yt. 60; all indictments on statutes must state all the circumstances necessary to the definition of the offense therein, State v. McKenzie 42 Me. 392; Com. v. Macuboy 3 Dana 70; State v. Stiles 5 La. Ann. 324; State v. Porte 9 id. 106; State v. Read 6 id. 227; State v. Casey 45 Me. 435; Ike v. State 23 Miss. 525; State v. Gove 34 N. H. 510; People v. Allen 5 Den. 76; State v. Raines 3 McCord 533; State v. Williams 14 Tex. 98; Hampton’s case 3 Gratt. 590; Anthony v. State 29 Ala. 27.</p>

<p> Title to realty not transferable by estoppel based on oral statements. </p> <p>A purchaser under a defective foreclosure is only in the position of a mortgagee, and can only recover possession by new forelosure proceedings.</p> <p>A sale of lands is void if not made in writing; and the purchaser, after making part-payment, can refuse to carry out the contract, and recover back what he has paid.</p> <p>If a verbal sale of a mortgage interest in lands is to be considered a sale of chattels, and the purchaser, after paying part, of the price refuses to carry out the bargain, it can be enforced only by a suit for the remainder or by foreclosure, allowing what has been paid.</p> <p>A tenant in fact cannot dispute the title under which he obtained possession, even though he has since acquired a better title; but when he has surrendered the possession obtained by tenancy he may then try titles. These principles do not apply to cases where the party in possession did not enter under the other and has never made himself the other’s tenant in fact. The principle by which a mortgagee who has misled a purchaser into believing that the mortgage is no longer a lien is estopped from claiming under it, applies to personal property, since mortgages in Michigan are chattel interests and may be transferred, paid or extinguished without writing.</p> <p>The doctrine of estoppel by actions, oral statements or silence can never pass a title which under the statutes can only be transferred by deed.</p> <p>S bought land from W who claimed it under a defective foreclosure, and after consulting N who was in possession. H did not tell S that he owned the equity of redemption or that he held other than as a tenant of W, and on the other hand gave N to understand that he would give up possession without foreclosure. Reid that although S purchased on this understanding H was not es-topped from afterwards insisting on his legal title.</p>

Case made from Bay. Ejectment. Plaintiffs recovered below. Identity of name does not determine tbe identity of the newspaper to which it pertains. Scammon v. Chicago 40 111. X46.

Assumpsit. Defendant brings error. A charge that a jury has a right to disbelieve the whole of a party’s testimony if he has willfully sworn falsely in one particular, should be qualified by excepting the case of corroborative evidence, Crabtree v. Hagenbaugh 25 111. 240; Pope v. Dodson 58 111. 361; U. S. Exp. Co. v. Hutchins id. 44; Meixsell v. Williamson 35 111. 530; C. á A. B. B. v. Buttolfe 66 111. 347; 1 Whart. Ev. § 412.

Assumpsit. Plaintiff brings error. One who agrees to pay his earnings to another in return for his maintenance can rescind the agreement for non-performance of any important condition, Bish. Cont. 667-681; 2 Pars. Cont. 679 ; 2 Chitty Cont. 920; Hill v. Rewee 11 Met. 268; Brown v. Harris 2 Gray 859.

as to the joinder of distinct offenses, cited Arch. Cr. PI. 158; 1 Chitty PL 201; 1 Chitty Cr. L. 253; Bose. Cr. Ev. 232; People v. McKinney ' 10 Mich. 95; if an election between counts is not required, the decision is final, Final v. Backus 18 Mich. 223; Detroit v. Jackson 1 Doug. ..(Mich.) 110.

Claimant brings error. as to the exclusion of testimony known equally to a deceased party and to one else, cited most of the cases reviewed in the opinion by the court.

Mandamus. Office is tbe right to exercise a public function or employment, and to take the fees and emoluments belonging to it, both in the case of a salaried office and- of those offices that are compensated by fees where^the receipt of compensation depends on the exercise of the prerogatives of the office. 2 Bl. Coin. 36; 3 Kent’s Com. 454; Bouvier’s Law Diet, tit. “ Office.” The office of constable is a most ancient one, and existed at the common law.

Bill for accounting. Dismissed. Complainant appeals. Trustees cannot rightfully put themselves in a position where their interests will be adverse to the beneficiary. Jackson v. Ludeling' 21 Wal. 625; Letter of Sewell, Yanderpoel and Bennett, 9 Chic. Leg. News, 81; Ingerson v. Starkweather Wal.

<p>Error to Muskegon.</p> <p>Assumpsit on contract. Defendant brings error.</p> <p>A settlement by the assignee of a patent with an infringer is equivalent to a sale, 1 Chitty Cont., 215-21; 1 Pars. Cont. 49-53; Spaulding v. Page 1 Sawyer 702; Bloomer v. Millinger 1 Wal. 350; Howell v. Pack 7 East 164; Ferguson v. Cdrrington 9 B. & C. 509; Story’s Eq. Jur. § 250.</p>

Assumpsit. Defendant brings error. A payment voluntarily made on a contract by a municipality, without fraud, but under a mistake as to the legal construction of the contract, cannot be recovered back, Detroit v. Martin 34 Mich. 174; Railroad, Company v. Com’rs 98 U. S. 541; Lamborn v. Com’rs 97 U. S. 181; Doll v. Earle 59 N. Y. 638; notice to a city officer who has powers and duties in relation to the matter as to which notice is given, is notice to the city, Dill.

Pardee. Judgment was given for the estate, and claimant brings error. Whatever bears directly on the credibility of a witness is material to the issue, Van Wyck v. McIntosh 14 N. T. 439; when the character of a party has been attacked, it becomes a material issue, 1 Gxeenl. Ev. §§ 54, 55; 1 Ph. Ev.

Bill to restrain defendant in ejectment from interposing his legal title as a defense. Dismissed. Complainant appeals. Amendments may be made on the hearing if not inconsistent with the case and if justice will be advanced thereby, 1 Barb. Ch. Pr. 215; or if germane to the suit or explanatory, Slater y. Breese 36 Mich. 89; Munch■ v. Shabel 37 Mich. 166. A bill framed for one purpose will not generally be allowed to sustain a different relief than it prays, 1 Dan.

Case made after judgment from Wayne. Assumpsit. Defendant had judgment below. See as to payment of fees in fraudulent debtors’ cases, Bromley, v. People 7 Mich. 472; proceedings therein are civil, Randall v. Auditors, on hearing for order to show cause, October, 1878. The Fraudulent Debtors’ Act contemplates public and penal proceedings and that the county shall pay the fees, Comp. L. §§ 7174-87.

'Mandamus. The power to amend, alter or repeal a charter, reserved by the Constitution or by an express provision of the act, is a reservation to the State of its full legislative power, and legislative action thereon can be held void only because it is unconstitutional on other grounds, Holyoke Go. v. Lyman 15 Wal. 500; Parker v. Metropolitan B. B. Co. 109 Mass. 506; Bailroacl Go. v. Georgia 98 U. S. 359; Tomlinson v. Jessup 15 Wal. 454; Fitchburg B. B. Co. v. Grand June.

<p>Information in the nature of quo warranto.</p>

Case made after judgment from Bay. Assumpsit. Plaintiff brings error.

Mandamus. Mandamus is the proper mode of compelling the allowance of a claim by the board of supervisors, if the county is liable for it, Bristow v. Supervisors 3 Mich. 475; the House of Correction of Detroit is not subject to the control of the city, Detroit v. Laughna 34 Mich. 402, and as to the county of Wayne it is simply a substitute for the county jail, Elliott v. People 13 Mich. 365; the expense of keeping prisoners in a county jail shall be paid by the county itself,…

Bill for partnership accounting. Both parties appeal. A consent decree ■cannot be materially varied without the assent of both parties (2 Dan. Ch. Pr. 1029 n. 10; Leitch v. Cumpston 4 Paige 476; Jenkins v. Eldredge 1 Woodb. & M. 61; Clark ■v. Hall 7 Paige 382), nor can it be set aside, Hcurrison v. Rumsey 2 Ves. 488, nor appealed from, 2 Dan. Ch. 1459; Coster v. Clarke 3 Edw. Ch. 405; Atkinson v. Manks 1 'Cow. 691; French v. Shotwell 5 Johns.

<p> Dismissal of appeal. </p> <p>An appeal will not be dismissed where the case was not settled within the time limited by law, if the appellant used due diligence to obtain a settlement and was prevented by causes beyond his control, such as the court stenographer’s inability through sickness to finish a transcript of the testimony.</p>

Joseph. Trover. Defendant brings error. A foreclosure sale does not become absolute until confirmed (Demaray v. Little 17 Mich. 386) and an assignee of the mortgager is entitled until then to possession and the income from the land, Wagar v. Stone 36 Mich. 366; Newton v. McKay, 30 Mich. 380; Howard v. Bond 42 Mich. 131.

'Error to Alpena. Assumpsit. Plaintiff brings error. An occupant of land already leased, but who bas entered under an independent agreement, or by permission, without reference to the old lease, or objection by the first lessee, cannot set up the former lease in defense to an action for use and occupation (Phipps v. Sculthorpe 1 JB. & Aid. 50; Prevot v. Lawrence 51 N T. 222; Scott v. Hawsman 2 McL. 180) so, if the second lease recites the existence of the first, Duke v.…

Foreclosure. Bill and cross-bill. Complainant appeals. It is unimportant whether a party to an instrument actually signs it if he assents to its being signed for him and acknowledges the .signature, Kerr v. Russell 69 111. 666; Tunison v. Chamblin 88 111. 389; the mere testimony of a party who purports to have acknowledged an instrument cannot overcome the certificate of acknowledgment, Russell v. Baptist Theol.

Bill in aid of execution. Dismissed. Complainant appeals. A clause in a general assignment whereby the debtors are bound to release the assignor is evidence of a fraudulent intent to delay, and invalidates the assignment, Grover v. Wake-man 11 Wend. 189; Henderson v. Bliss 8 Ind. 100; Butler v. Jaffray 12 Ind. 604; McFarland v. Birdsall 14 Ind. 126; Ingraham v. Wheeler 6 Conn. 281; Armstrong v. Byrne 1 Edw.

Action on recognizance. Defendant Spencer brings error. The county clerk’s official certificate of the acknowledgment of a recognizance of bail before him is entitled to belief rather than the unsupported oath of the party who purported to acknowledge it, Graham v. Anderson 42 111. 514; Lickmon v. Ha/rding 65 El. 505; Canal & Dock 'Co. v. Bussell 68 El. 426; McPherson v. Sanborn 88 111. 150; Hartley v. Frosh 6 Tex. 208; Jamison v. Jamison 3 Whart. 457; Bidgely v. Howard 3…

Divorce. The bill claimed that the parties had been married nearly three years; that defendant was inordinately passionate; that complainant’s health broke down in consequence and she had to leave him, and that he used abusive language to and about her, such as that he wished lightning would strike her, etc. The proofs did not show that complainant’s illness was caused by her husband’s conduct towards her, or that she was seriously ill at any time. The bill was dismissed.

Assumpsit. Plaintiff brings error. Judgment against joint debtors, only one of whom has been served with process, is no bar to a new suit against all, on the original demand, Bonesteel v. Todd 9 Mich. 371; Mason v. Eldred 6 Wall. 231; Oakley v. Aspinwall 4 Comst. 514; nor is a foreign action a bar to an action on the original demand, Freeman on Judgments, §§ 220, 605; a judgment on a note given by one of several persons jointly indebted on book account is no bar to an action…

<p> Stocleholders joined with corporation in suits for labor debts. </p> <p>An action for labor debts brought under Act 113 of 1877 cannot be maintained against stockholders unless joined with the corporation as defendants.</p>

Trespass on tee case. Defendant brings error. Evidence of matters outside of the complaint on which a prosecution is based is inadmissible in an action for malicious prosecution, Josselyn v. McAllister 25 Mich. 45; Cooley on Torts 183; 4 Wait’s Actions 344.

<p>Appeal from Genesee.</p> <p>Bill to set aside a deed. Complainant appeals.</p>

<p>Error to St. Clair.</p> <p>Assumpsit. Defendant brings error.</p>

<p>Error to St. Clair..</p> <p>Action on insurance policy. Defendant brings error.</p> <p>An insurance policy can be changed of enlarged by parol, Seaman v. O’Hara 29 Mich. 66; Kennebec Go. v. Augusta Ins. Go. 6 Cray 209; First Baptist Chu/rch v. Brooklyn Ins. Go. 19 N Y. 305.</p>

<p>Error to St. Clair.</p> <p>Assumpsit. Defendant Stewart brings error.</p> <p>Testimony given by a party is not admissible on new trial as against a joint party, Kellogg v. Secord 42 Mich. 318.</p>

<p>Error to Bay.</p> <p>Assumpsit. Defendant brings error.</p>

<p>Error to Gratiot.</p> <p>Ejectment. Two cases. Plaintiff brings error.</p>

<p>Appeal from Calhoun.</p> <p>Bill to enforce the payment of a legacy. Dismissed. Complainant appeals.</p>

Ejectment. Plaintiff brings error. Possession, in order to settle a disputed boundary, must have been adverse, Chapman v. Crooks 41 Mich. 595; and must be shown to have been so for twenty years, Yelverton v. Steele 40 Mich. 538 ^permissive enjoyment of, a privilege does not establish adverse' user, Chestnut Hill etc. Co. v. Piper 77 .Penn. St. 432; Sargent v. Ballard 9 Pick. 251; Parker v. Foote 19 Wend. 309; 1 Washb.

<p>Sufficiency of demurrer — Appeal from proceedings later than decree.</p> <p>A ground of demurrer should be so stated as to apprise the court of the real objection, and if it is not, the party demurring can claim nothing under it.</p> <p>A judgment creditor’s bill averred that execution had been returned unsatisfied on-a specified day. It was demurred to on the ground that it failed to show that the execution was returned as required by law to entitle complainants to maintain the bill. Held that the demurrer did not sufficiently present the objection that the date of the return was Sunday.</p> <p>A point not sufficiently presented by demurrer cannot, on appeal, be raised for the first time.</p> <p>Proceedings subsequent to the decree appealed from are not reviewable.</p>

Replevin. Defendant brings error. A gift is valid if the intent to make it is clear, and if there is anything from which delivery is inferable, Ellis v. Secor 31 Mich. 185; Wallace v. Hams 32 Mich. 380; Latham v. Udell 38 Mich. 238; Davis v. Zimmerman 40 Mich. 24; Crittenden v. Phoenix Life Ins. Co. 41 Mich. 442.

Assumpsit. Defendants bring error. Verdict -will not be set aside merely because the jury were allowed to take to the jury-room a paper setting out a computation of the amount claimed, Hill v. Robbins 22 Mich. 475; Shipman v. Seymour 40 Mich. 274; Comstock v. Smith 20 Mich. 345; Continental Ins. Co. v. Horton 28 Mich. 173.

<p>Garnishment of judgment.</p> <p>A judgment recovered in justice’s court is not, under Michigan statutes, subject to garnishment proceedings before another justice.</p> <p>Garnishment proceedings are purely statutory and cannot be extended to eases not provided for by law.</p> <p>Funds under the official control of receivers and registers in ehan- ‘ • eery cannot be reached by garnishment process.</p> <p>One justice cannot garnish a judgment rendered by another. The judgment may always be paid to the justice who renders it, and he must issue execution on application by the prevailing party, unless he has some excuse for refusing it. No other justice has any statutory right to stay his acts or direct his conduct.</p>

Debt on bond in replevin. Defendants bring error. The sheriff’s return to a writ of replevin as to whether the plaintiff had given a bond, is conclusive, Roiuell v. Klein 44 Ind. 290; Smith v. Noe 30 Ind. 117; Hamilton v. Matlock 5 Blackf. 421; Remington v. Henry 6 id. 63; Bean v. Parker 17 Mass. 591; Slayton v, Chester 4 Mass. 478; Phillips v. Harvey 50 Miss. 489; Bott v. Burnell 9 Mass. 96: 11 Mass. 163; Eastabrook v. Hapgood, 10 Mass. 313; Bussell v. Gray 11 Barb. 541;…

Petition to vacate foreclosure sale. The petition avers that on June 24, 1856, John Haire mortgaged certain property to Thomas D. and Francis B. Gilbert; that in 1868 the petitioner Burnham received… Held: and afterwards assigned the same to Eobert A. Haire, who bid off the lands at the foreclosure sale; that the bids for the various parcels not covered by the Burnham mortgage were wholly inadequate, but that the bid for that parcel was for all it was worth.

<p>Divorce — Unlawful marriage — Alimony.</p> <p>Alimony is.not allowable on a bill for divorce that does not bring the complainant within any recognized equity.</p> <p>Mistakes of law cannot usually be made a ground of equitable relief when standing alone.</p> <p>It is not presumable that'any person of ordinary intelligence supposes that a marriage can be dissolved by mere consent of parties. '</p> <p>A bill for divorce for cruelty cannot be maintained, where it shows . that the complainant had known defendant had a former wife who was living apart from him under an agreement of separation, and does not show that complainant was led to believe there had been any thing equivalent to a divorce, or aver that she believed her own marriage valid.</p> <p>Costs were denied' on reversing an order allowing an execution for alimony, where there was no valid marriage, and both parties had reason to know it.</p>

Mandamus. cited Mich. Const., art. vi., § 24, and argued that the only restrictions contemplated by its framers upon license to practice law were that the practitioner should be twenty-one years old and of good moral character, Const. Debates 1850, pp. 812, 817, 822, 843, 894, 896; an agent of any suitor when properly appointed may prosecute or defend the suit of his principal, McClintoelc v. Laing 22 Mich. 220; 1 Green’s Pr. 25.

Mandamus. An order enjoining the execution of a writ of replevin and authorizing a receiver to dispose of the property described in the writ, is appeal-able, Arnold v. Bright 41 Mich. 207; McCombs v. Merry-hew. 40 Mich. 721; Taylor v. Sweet 40 Mich. 736; Port Huron v. Jones 33 Mich. 303; Pori Huron v. St. Clair Circuit Judge 31 Mich. 456; People v. Simonson 10 Mich. 335; Michigan Ins. Co. v. Whittemore 12 Mich. 312.

Bill to determine the amount of defendant’s claim against complainant’s assignors, Benj. M. Austin and Wm. A. Tomlinson, so that the assignee may pay defendant a dividend out of tbe funds which he holds. The bill sets forth that James S. Kendell of Chicago having mortgaged certain property in that city, sold it subject to the encumbrances thereon to Benj. M. Austin, who afterwards deeded the premises to his partner Wm.

<p>Exceptions to the Recorder’s Court of Detroit,</p> <p>Criminal Information for larceny from a store in the day time.</p>

Injunction. Bill to enjoin the prosecution of a suit at law upon a contract of agency made with a sewing machine company, and to avoid the contract and the bond given to secure its enforcement. Belief was given, and defendant appeals.

Clair. Ejectment. Plaintiff brings error. In ejectment it is enough to trace title to a common stock, Johnstone v. Scott 11 Mich. 243; plaintiff in ejectment can recover on defendant’s parol acknowledgment that he has no title and on proof of title in himself from defendant’s lessor, Jackson v. Denison 4 Wend. 561; the declarations of a party in possession and of those under whom he claims, as to the nature and extent of their interest, are admissible in evidence, Jackson v.…

<p>Claims against county — Supervisors.</p> <p>The original jurisdiction over claims against counties which belonged to the courts at common law before the adoption of the Constitution was not taken away by the constitutional provision that the board of supervisors should have exclusive power to adjust all claims against their respective counties, and the sums so fixed should be subject to no appeal. The purpose of the provision was to take away the right of appeal.</p> <p>A claim against a county for moneys illegally collected by its officers will sustain an action at common law against the county, and such an action is not prohibited by the clause in the Constitution giving the board of supervisors “exclusive power to adjust all claims against their respective counties.” Art. x. § 10.</p>

Mandamus to compel the sheriff to set off against each other certain executions in suits between Frank G-. Baker and Maria Reed. Respondent answered that Baker’s attorney had served notice upon him claiming a lien on the judgment which Baker had recovered, exceeding it in amount, and that the right under Comp.

Petition by defendant in foreclosure for re-sale of the premises. Denied. Petitioner appeals. Commencement of, suit may date from the delivery of summons to the sheriff, or service of process, Cornell v. Moulton 3 Den. 12; McGraw v. Walker 2 Hilt. (N. Y.) 404; Comp. L. § 5723. When a foreclosure sale has been confirmed, it can be opened only on a showing that the.price bid was inadequate, and of some fraud, mistake or accident, 2 Dan.

Trover. Plaintiff brings error. Tbe relative rights of the parties to a chattel mortgage before foreclosure, when the mortgagee is in possession, are governed by the law of bailment, Van Brunt v. Wakelee 11 Mich. 177; Flanders v. Chamberlain 24 Mich. 305; Lucking v. Wesson 25 Mich. 445; Kohl v. Lynn 34 Mich. 360; Haynes v. Leppig 40 Mich. 606; except as against the mortgagee the mortgager has the right of possession, Cram v. Bailey 10 Gray 88; a bailee can maintain action…

<p>Error to Superior Court of Detroit.</p> <p>Trespass on the case. Plaintiff brings error.</p>

<p>Error to Superior Court of Detroit.</p> <p>Assumpsit. Defendant brings error.</p>

<p>Appeal from Wayne.</p> <p>Complaint tinder the Water-Craft Act. Complainant and respondent both appeal.</p>

Assumpsit. Plaintiff brings error. Where the words of a contract are obscurely written, it is for the jury to determine what they are, 2 Pars. Gont. 639; 1 Greenl. Ev. § 288 b; 2 Whart. Ev. § 939; Armstrong v. Burrows 6 Watts 266; Fenderson v. Owen 54 Me. 372; Arthwr v. Roberts 60 Barb. 580; Burnham v. Allen. 1 Gray 499; Cabarga v. Seeger 17 Penn.

Trespass on the case. Plaintiff brings error. One who is individually injured by a violation of official duty has a remedy concurrent with the public prosecution for such violation, Cooley on Torts 7, 81;. Plumer v. Smith 5 N. H. 554; Boston etc. B. R. Co. v. Dana 1 Gray 83; Pettingill v. Rideout 6 N. H. 454; Cross v. Guthery 2 Boot 90; Patton v. Freeman 1 Coxe 113; Piscataqua Bankv. Turnley 1 Miles 312; Story v. Hammond 4 Hammond 376; Lofton v. Vogles 17 Ind. 106: 14 Am.

<p>Error to Branch.</p> <p>Trespass on the case. Defendant brings error.</p>

Assumpsit. Plaintiff brings error. A corporation cannot without specific authority, mortgage an essentially corporate franchise, Joy ,v. Planlc Boad Co. 11 Mich. 155; Meyer v. Johnston 53 Ala. 237; and if the franchise is mortgaged, the purchasers become subject to the corporate liabilities, Eldridge v. Smith 34 Vt. 484.

Complaint for encumbering alley. Respondent was convicted. The reasonable and proper .use of a way depends largely upon the local situation and upon public usage, Clark v. Ice Company 24 Mich. 512; O’Linda v.- Lothrop 21 Pick. 292;-Gahagan v. B. d L. B. B. 1 Allen 187; Chamberlain v. Enfield 43 N. H. 356; Barling v. West 29 Wis. 308; Mathews v. Kelsey 58 Me. 56; Com. v. Passmore 1 S. & R. 217.

Petition to enforce lien on logs. Claimant brings error. A petition to enforce a lien on logs must show that the work for which it is claimed was necessary, Ames v. Port Huron Log etc. Go. 11 Mich. 147; Chapman v. Keystone L. & B. Co. 20 Mich. 367; Dicinel v. Fishe 9 Greenleaf 21.

<p>Bower interest — Sufficiency of consideration — Bistribution of estate.</p> <p>A -widow’s interest in her husband’s estate is a valuable proprietary-interest, practically absolute, and subject only to the contingency of debts of the estate, and she can sell it whether administered or not.</p> <p>Where one who bargains for the interest of an heir, agrees also to' pay the debts of the estate, he gets the full benefit of the transfer of the interest.</p> <p>The sufficiency of the consideration for an honest bargain cannot be inquired into if there was any consideration of value which was not separable at the time into specific values.</p> <p>An administrator cannot reclaim property taken by distributees of the estate, unless it is needed for debts.</p>

Complaint under village ordinance. Judgment was given for respondent. The Legislature can delegate to a municipal corporation its authority to control traffic in liquors, Flint d Fentonville P. B. Go. v. Woodhull 25 Mich. 99; Hoyt v. Jeffers 30 Mich. 181; Attorney General v. Com. Council 29 Mich. 108; Whipple v. Saginaw Ciro.

Assumpsit. Defendant brings error. Stockholders of a corporation have no authority to contract or appoint by a resolution a committee authorized to contract therefor, McCullough v. Moss 5 Den. 567; Conro v. Port Henry Iron Co. 12 Barb. 27; Cashwiler v. Willis 33 Cal. 11; Cammeyer v. United German Churches 2 Sanf. Ch. 186; the stockholders cannot interfere with the directors in the management of the affairs of the corporation, 1 Bedf. on Bailways 87, n. 1; Ang. & Am.

<p>Illegal assessments — Certificate of valuation — Tax-sale.</p> <p>In a bill to remove a cloud caused by a tax-sale, an averment that the assessor did not make any legal or valid assessment, does not point out a specific defect, and an averment that he had no right, authority or jurisdiction to assess the amount actually assessed, is not an averment of fact, and gives no information as to the real ground of complaint.</p> <p>The supervisor’s certificate of valuation attached to an assessment roll, cannot be contradicted in any proceeding to enforce the tax.</p> <p>Dismissal of a bill to clear a title clouded .by tax-sales does not prevent a defense at law against the tax-titles.</p> <p>Leave, on dismissing a bill, to sue again in equity should not be granted without some equitable reason, and is properly denied where the amount involved is trifling and there is a legal remedy.</p> <p>Where complainant in a bill to remove a cloud caused «by a sale for a city tax had been a city official connected with the tax business when it was levied, and had bought afterwards and expressly subject thereto, he may be presumed to have been allowed to retain enough of the consideration to pay it, and has no equity to entitle him, on dismissal of his bill, to have leave to file another.</p>

Assumpsit. Defendant brings error. Where the performance of a contract is prevented by inevitable accident, damages are not recoverable, Taylor v. Caldwell'3 B. & S. 826; Dexter v. Norton 47 N. Y. 62; Wolfe v. Howes 20 N. Y. 197; Clarke v. Moore 3 Mich. 55; Cuddy v. Major 12 Mich. 368; Mich.

Assumpsit on insurance policy. Plaintiff brings error. Temporary absence from a house is not such abandonment as will avoid a fire insurance policy, O’Brien v. Commercial Ins. Go. 38 N Y. Supr. Ct. 517; Dennison v. Phoenix Ins. Co. 52 Iowa 457; Phoenix Ins. Co. v. Tucker 92 III. 64. cited as to the effect on a fire insurance policy of vacating the premises, Wustum v. City Fire Ins. Co. 15 Wis. 138; Harrison v. City Fire Ins. Co. 9 Allen 232; Amer. Ins. Co. v. Padfield 4 Ins.

Assumpsit on the following promissory note: $867.09. Mt. Clemens, Mich., May 10, 1875. Ninety days after date we promise to pay to the order of Daniel C. Tilden, cashier, three hundred sixty-seven 09-100 dollars at the First National Bank, with interest at ten per cent per annum, after maturity, value received. Daniel C. Tilden, vestryman, Grace church. W. C. Tennant, “ “ “ Geo.

<p>Appeal from Eaton.</p> <p>Bill to set aside deed. Defendants appeal.</p>

<p>Mandamus.</p> <p>D. A. Rice and M. V. & R. A. Montgomery for relator.</p> <p>Legislative power to locate county seats cannot be delegated, Cooley’s Const. Lim. 116; Shumway v. Bennett 29 Mich. 451; People v. Collins 8 Mich. 843; Maxwell v. Bay City Bridge Co. 41 Mich 453; Barto v. Himrod 8 N. Y. 483.</p>

Trespass . on the case by Nowlin against Snow for misrepresenting the value and location of land in Kansas 'for which plaintiff traded certain real estate in Dearborn. Certain depositions relating to the value of part of the ilands were excluded on the ground that the cross interrogatories had not been put by the commissioner who book them. Plaintiff recovered judgment for $1467.60 and defendant brings error.

Assumpsit on the common counts upon the following instrument: $425.00. Detroit, January 21, 1879. Messrs. Lichteriberg & Sons: Please pay to Alex. Mair whatever amount there will be to my credit on the sale of 100 barrels of flour sold you January 4th, shipped to Albany, N. Y. John Baker, Bloom. Across the face of this order was written: “Accepted, payable when the draft drawn on Henry Russell is paid, or when we are satisfied that the flour is all right.

<p>Replevin — Ambiguity in description of property.</p> <p>A judgment in replevin for a quantity of stacked wheat, upon which plaintiff had a lien under a chattel mortgage, was reversed because the description- of the land on which it grew, as given in the writ of replevin, differed from the description in the chattel mortgage as given in the record, which contained nothing showing that it was incorrect.</p>

<p>Money paid without consideration — Measurement of logs — Instructions to ju/ry in absence of counsel.</p> <p>An action will lie against a party to recover back money paid him without consideration, even though he was an agent and had paid over the money to his principai, if the party dealing with him had no notice of the agency.</p> <p>In an action based on a shortage of logs sold, it was shown that the measurement was to have been by the scale of a certain company in whose bopm the logs were lying. Held proper to instruct the jury that the parties must be deemed to have contracted with reference to the scale by which the boom company’s-business was ordinarily conducted, which was sufficiently proved by the measurement which they had entered on their books and acted on, and the original tally need not be produced.</p> <p>In an action involving the measurement of logs sold, the jury were charged that if the parties agreed that a certain scale should be followed unless the purchaser was notified to the contrary, that scale must govern; but if they did not so agree, and the vend- or told the purchaser to notify him if he wanted the logs rescaled, and the purchaser said nothing, it would not be an assent. Afterwards the court sent for the jury and told them, in the absence of the vendor’s counsel, that he did not mean to charge them that they could not find an assent from the purchaser’s silence, and that they might draw their own inferences from the conduct of the parties. Held that the original charge would not have been erroneous unless the notice to the purchaser was given before the contract was closed and the logs paid for, and that the absence of the vendor’s counsel did not prejudice him when the possible false impression was corrected.-</p>

Assumpsit. Plaintiff brings error. Commissions for selling may be earned by procuring a purchaser, Knapp v. Wallace 41 N. Y. 477; Lincoln v. McClatchie 36 Conn. 136; Cook v. Fislce 12 Gray 491; McCreery v. Green 38 Mich. 172.

<p>Replevin — Right of action — Proving contract by subscribing witness — Tax-deed relating bach — Waste.</p> <p>Replevin for timber cannot be maintained on á showing by plaintiff of title to an undivided half of the land from which it was removed.</p> <p>A presumption of the ownership of timber and the right to recover it in specie, by an action of replevin, does not arise from proof that plaintiff had an interest in the land in common with another person.</p> <p>Where replevin rests on plaintiff’s possession through another person who holds under a contract with him which the other contracting party had signed only by his mark, the contract must be proved by the subscribing witness.</p> <p>The statutory right of a party to testify on his own behalf does not dispense with the necessity for calling the subscribing witness to prove a contract to which he was a party.</p> <p>A tax-deed cannot relate back to the time of the sale for the purpose of making parties trespassers by reason of acts done on the land before the deed was given.</p> <p>Where the notice of special defense to an action of replevin for timber cut from land merely puts in issue the title to the land at the time of cutting, the existence of a remedy for waste is not in question.</p>

Assumpsit. Defendants assign errors on an order of the Circuit Court quashing the order of a circuit court commissioner dissolving an attachment against them in the original case.

<p>JReplevin bond — Defense to action.</p> <p>It the pendency of bankrupt proceedings invalidates a levy, they should be shown in an action of replevin to recover the value of the goods levied on, and not withheld to be be litigated in proceedings relating to the replevin bond.</p> <p>One who replevies property transferred to him in fraud of creditors, and levied upon accordingly, cannot after suffering judgment in replevin enjoin a suit on the replevin bond, on the ground that the debtor had made a composition with creditors and thereby recovered his assets.</p>

<p>Error to Eaton.</p> <p>Replevin. Plaintiff brings error.</p> <p>Replevin lies in a State court for property wrongfully levied upon by a federal officer. Buck v. Colbath 3 Wal. 334.</p>

Assumpsit by Mrs. Christina Mason against Dunbar as executor of the estate of her father-in-law for the amount of a claim against his estate “for care, nursing, attendance, and washing for said deceased, from August 14th, 1876, to June 13th, 1878, — 650 days at $2 per day, $1,300.” The claim was allowed by commissioners on the estate, and on appeal to the circuit court the judge directed a verdict for the estate. The claimant brings error.

Mandamus. Costs were allowed against the State where it was held that there was no right to prosecute, in Attorney General v. Soule 28 Mich. 153.

Thomas, justice of the peace. A complaint for keeping a bawdy house should state what facts constitute the offense, 2 Bish. Cr. Pro. §§ 273-5; Tiffany Grim. Law 42, 250; People v. Jackson 3 Den. 101; People v. Wilber 4 Parker’s Cr.

Clair. Information for breaking into a building witb intent to steal. Eespondent was convicted below. An information for a statutory crime is fatally defective if it does not allege every essential constituent of it, Enders v. People 20 Mich. 239; State v. Philbrick 31 Me. 401; Maride v. State 3 Ind. 535; Lambert v. People 9 Cow. 578; Lewis v. State 16 Conn. 32; Tiff. Cr. .Law 622-3; 1 Archb. Cr. PL 265; 2 Bish. Cr. Pro. 103; Bish. on Stat. Crimes 331.

<p>Exceptions before judgment to the Eecorder’s Court of Detroit.</p> <p>Information for robbery. Eespondent was convicted.</p>

<p>Fire insurance — Over-valuation—Burning by assured.</p> <p>Ia an action on an insurance policy it is proper to cross-examine the plaintiff as to whether a fraudulent over-valuation of the property was not given at the time he applied for the policy.</p> <p>Notice of special defense attached to a plea of the general issue, is not required to be as precise as special pleading.</p> <p>In assumpsit on an insurance policy, a notice attached to the plea of the general issue that defendant would show, that plaintiff was'guilty of fraud in procuring the insurance, is sufficient if it fairly apprises the plaintiff of the defense to be set up.</p> <p>Where defendant in an action on a fire insurance policy claimed that plaintiff himself set fire to the property, it was held proper to show that money belonging to the plaintiff, and personal property belonging to near relations of his, was destroyed; also, that the value of the property destroyed far exceeded the insurance.</p> <p>Where it was claimed in defense to an action on a fire insurance policy that the plaintiff himself set fire to the property, statements made by him before the fire, to third persons, to the effect that he was going away were inadmissible; so also was plaintiff’s evidence as to why he went and where he was on the night of the fire.</p> <p>In assumpsit on a fire insurance policy where the defense is that plaintiff himself burned the property, testimony tending to show that he had loose notions respecting the destruction of insured . property is material, though the weight of such testimony might depend on whether he had expressed such views lately or long before.</p>

<p>Fire insurance — proofs of loss — assignment of claims.</p> <p>An insurer’s neglect to object within a reasonable time to proofs of loss where the defects in them could be remedied if intelligibly pointed out, amounts to a waiver; the question whether he has acted in good faith and seasonably is for the jury.</p> <p>Where defects in the proofs of loss of insured property are found to have been waived, any objection to the certificate attached to the proofs is disposed of by the verdict, and presents no legal question.</p> <p>Separate interests held by several persons under the same policy of insurance, may be united by the assignment of the policy to one individual who may bring suit upon it.</p> <p>Where each of several persons assured by the same policy have distinct insurable interests, they can enforce their rights under the policy in equity if they cannot at law.</p>

<p>Striking out evidence — Adverse possession — Form of lease.</p> <p>A trial judge cannot strike out relevant evidence which the parties ■ are willing to retain, nor stipulate conditions to the reception of evidence, as by refusing to allow testimony to stand unless a party consents to an answer at large.</p> <p>An adverse holding cannot exist if the holder does not believe in his title.</p> <p>Where a trespasser, in whom title by adverse possession has not been perfected, accepts a lease and agrees to give up possession when it expires, he is estopped from repudiating his recognition of his landlord’s title and from claiming adversely to such title.</p> <p>It seems that usage permits a lease to be executed by exchanging duplicates each of which is signed only by the other party.</p> <p>A parol lease for a single year, if accepted, is enough to break a period of adverse possession and bar the statute of limitations against actions for real estate.</p>

Ejectment for premises claimed by Carpenter under the foreclosure of a mortgage, and by defendant under a patent from the State. The original purchaser of the land only took a certificate of purchase from the Commissioner of the Land Office, which certificate, after several intermediate assignments, was assigned to Ingersoll for a valuable consideration, and without notice of a mortgage on the premises, given by one of the former assignees and assigned to Jas.

Notice of proceedings to lay out a highway must be shown in the return by the highway commissioner to a writ of certioran, Van Aulcen v. Com’rs 27 Mich. 414; People v. Gom’rs of NanJdn 14 Mich. 528; Dupont v. Gom’rs 28 Mich. 362.

Assumpsit. Plaintiff brings error. A claim cannot be re-opened if after having been disputed and asserted in good faith, it has been settled without fraud, undue advantage or mistake of fact, Kercheval v. Doty 31 Wis. 476; Trigg v. Bead 5 Humph. 529; Larue v. White 8 Dana 46; Boss v. McLauehlan 7 Graft. 86; an account stated may be impeached for mistake, Lochvood v. Thorne 11 N. T. 170; Philips v. Belden 2 Edw.

<p>Error to Alpena.</p> <p>Assumpsit. Plaintiff brings error.</p>

<p>Error to Alpena.</p> <p>Assumpsit. Defendants bring error.</p>

Trespass on the case for false imprisonment. Defendant brings error.

<p>Appeal from Tuscola.</p> <p>Injunction to restrain enforcement of tax. Complainant appeals.</p>

<p>General assignments — Fraud,—Garnishment of assignee.'</p> <p>Where the right to proceed to the trial of aft issue against a garnishee depends on the state of the principal case, the court is at liberty to consider the record in that case without separate proof.</p> <p>A finding of fact will not be reviewed unless there was no testimony tending to support it.</p> <p>Fraud in a general assignment is fairly inferable from the fact that the goods were inventoried at $55,011.68 and were appraised at $27,272.77, while the goods on hand five weeks before inventoried about $95,000; it may also be inferred, from a showing that the 'assets of a certain company belonged to the firm making the assignment, and had been disposed of by collusion.</p> <p>A general assignee is not a bona fide purchaser, and general assignments are not exempted from the consequences of actual fraud that has any tendency to hinder, delay, or defraud creditors.</p> <p>It is fraud to intentionally withhold from a general assignment property which ought to have been included in it.</p> <p>A general assignment that is broad enough in its terms to cover any property belonging to the assignor is nevertheless invalid if property is secretly kept back from the assignee and used for private purposes and no authority is given to the assignee to take measures to set aside fraudulent transfers.</p>

<p>Error to St. Clair.</p> <p>Information in the nature of quo warranto. Eelator brings error.</p>

Replevin. Defendant brings error. An officer acting under process from a State court cannot interfere with the possession of goods acquired by a United States Marshal by virtue of the process of a Federal court, Buck v. Goliath 3 Wall. 334; Freeman v. Howe 24 Iiow. 450; Chapin v. James 14 Am.

Assumpsit on breach of warranty. Defendant brings error. as to the insufficiency of the declaration, cited Stojlet v. Marker 34 Mich. 313; Hertford v. Holmes 3 Mich. 461; 1 Selw. N. P. 644-5. Pleadings before justices should be liberally construed, Comstock v. Howd 15 Mich. 243; if a declaration alleges a substantial grievance, objections for inartificiality should be raised by demurrer, Briggs v. Milbmn 40 Mich. 512.

¿ Bill to enforce a lien for redemption from a mortgage and to foreclose against subsequent encumbrancers and purchasers. Defendants appeal. J A person who redeems from a mortgage becomes in equity an assignee of it and may enforce the lien thereof, Mattison v. Marks 31 Mich. 421; Sager v. Tapper 35 Mich. 134; Lamb v. Jeffrey 41 Mich. 719; Jones on Mortgages § 1086.

Foreclosure. Defendants Barnes and Christiancy ¡appeal. A mortgagee who releases a part of the premises to the prejudice of ■subsequent purchasers need not allow the value of the land released before selling their parcel, if he had not had notice of the purchase before the release, James v. Brown 11 Mich. .25; Reilly u. Mayer 1 Beas. 59; Blair v. Ward 2 Stockt. 126; Birnie v. Main 29 Ark. 591; Van Orden n. Johnson 1 McCart. 376.

<p>Contract for employment — Value of services — Party as witness— Jury have no concern with appeal papers.</p> <p>The actual value of services may be shown in an action on a contract of employment where there is a direct conflict of evidence as to the agreed rate of payment.</p> <p>A party to an action on a contract of employment is as competent as any other witness, if he knows the facts, to swear to the agreed rate of payment, or to the value of services.</p> <p>A jury in a circuit court has no concern with the appeal papers in a case brought up from before a justice.</p>

<p>Error to Alpena.</p> <p>Assumpsit. Defendant brings error.</p>

Assumpsit. Plaintiff brings error. Performance of an express contract is not excused by inevitable accident or other unforeseen contingency, Harmony v. Bingham, 2 Ker. 106; Adams v. Nichols 19 Pick. 275; 1 Chit. Cont. 67, n; 2 Pars. Cont. §§ 672-3; provision should have been made for it, Chit.

Trespass on the case. Plaintiff brings error. A municipal corporation is liable in an action for private injury caused by its active misfeasance in negligently creating a dangerous nuisance in the public street, Whart. Neg. 265; Shear. & Eedf. Neg. § 133; Dillon Mun.

<p>Certiorari — Proceedings to lay out highways.</p> <p>A writ of certiorari to review proceedings to lay out a highway will be dismissed with costs if notice of the intention to appeal was not promptly given after the complaining party became aware of the action taken.</p>

<p>Ejectment — Lien for taxes.</p> <p>A defendant in ejectment on suffering judgment cannot in the same case recover for the amount of taxes paid by him.</p>

Assumpsit. Plaintiffs bring error. A satisfaction should be shown by express agreement, Babcock v. Hawkins 23 Yt. 563; 2 Story Cont. 542; Story Prom. Notes 426; a composition must be proven unequivocally and its terms should appear to have been complied with, 1 Addison Cont. §§ 380-400; 2 Dan. Neg. Inst. § 1288; 2 Chit. PL (16th ed.) 288; Chitty on Bills 386; Cumber v. Wane 1 Sm.

The administrator brings error. One who claims exemption from the bar of a statute limiting the proof of claims against an estate, must show proper diligence, Lacey v. Loughridge SI la. 629; Brewster v. Kendrick 17 la. 481; in chancery a creditor who has failed to prove his claim within the time limited must show no laches, 2 Dan.

<p>Error to Van Burén.</p> <p>Ejectment. Plaintiff brings error.</p> <p>Dower and homestead rights may exist in the same premises: Chisolm v. Chisolm 41 Ala. 327; Jordan v. Strickland 42 Ala. 315; McGuan v. Turrentine 48 Ala. 70; Walsh v. Beis 50 HI. 477; Bursen v. Goodspeed 60 HI. 281; Bresee v. Stiles 22 Wis. 120; Mercier v. Chace 11 Allen 194; Monk v. Capen 5 Allen 146; Bates v. Bates 97 Mass. 392; Merriman v. Lacefield 4 Heisk. 222; Chaplin v. Sawyer 35 Vt. 290; Doane v. Doane 33 Vt. 649; Wallace v. Harris 32 Mich. 380.</p>

<p>Estates of decedents — Homestead—Wife's signature to mortgage— Notice in ejectment.</p> <p>A judgment will not be reversed for a defect in the judge’s finding, which a stipulation in the record shows was pure inadvertence.</p> <p>A homestead may be claimed in lands of a decedent which he owned in common with another Lozo v. Sutherland, 38 Mich. 168.</p> <p>A mortgage given by a married man of his homestead requires to its validity the signature of his wife, even though at the time she is not living with him. The signature of a woman, then passing as his wife, when she is not, is merely void.</p> <p>A wife driven from her home by the misconduct of her husband carries with her all her marital rights, including the right to preclude the conveyance or mortgaging of the homestead without her consent.</p> <p>The mortgage of a homestead given by a married man without his wife’s signature is void absolutely, and not merely as to the homestead interest. An heir at law of the mortgagor, after his death, may maintain ejectment against one holding under a foreclosure of it, and this, whether the heir is or is not a minor.</p> <p>One who gets possession of a homestead under proceedings in foreclosure of a void mortgage, is not entitled to notice as tenant at will, before being sued in ejectment.</p>

Exceptions before judgment from Cass. Assault with intent to kill and murder. Respondent' was found guilty of an assault with intent to commit manslaughter.

Trovbb. Defendant brings error. Statements of an agent of a firm as to wbo compose it are not admissible unless it is shown that he was a partner or that they were made in the hearing or by the knowledge or consent of partners, Collier on Partnership [4th Am. ed.] §§ 774-780; 1 Greenl. Ev. § 177; 2 id. § 484; 4 Stark. Ev. 1072; Heffron v. Hanaford 40 Mich. 305; Pleasants v. Fant 22 Wal. 119; Nudd v. Burrows 91 TJ.

<p>Mandamus.</p> <p>The right to inspect public records and make transcripts therefrom is a common-law right, Herbert v. Ashburner 1 Wils. 295; King v. Shelley 3 Term ■ 141; Rex v. Fraternity of Hostmen 2 Strange 1223; Harrison v. Williams 3 B. & C. 162; People v. Cornell 47 Barb. 329; State v. Williams 41 N. J. 332: 19 Am. L. Eeg. 154; Dill. Corp. §§ 240, 684-5; Ang. & Am. Corp. § 707; Grant on Corp. § 311; High Ext. Bern. § 833.; 1 Greenl. Ev. §§ 471-8; Silver v. People 45 111. 225; State v. Meadows 1 Kan. 90; Hawes v. White 66 Me. 305.</p> <p>Becords of conveyance were formerly looked upon as partaking of both a private and public character (Greenl. Ev. §§ 474-5) inspection of which was permitted to those interested and denied to strangers, Rex v. Allgood 7 Term 742; Gresley Ev. 170; there is no right at common law, and the claim must be supported by private interest or by a right in the public interest, In re McLean 9 Cent. L. J. 425; .Rex v. Merch. Taylor Co. 2 B. & Ad. 115; mandamus has been granted to allow copyhold tenants to inspect the manorial court rolls far enough to ascertain the condition of their own titles, but not to parties claiming no interest in the land, Rex v. Lucas 10 East 235; Rex v. Tower 4 M. & S. 162; Rex v. Justice of Staffordshire 6 Ad. & El. 268; Rogers v. Jones 4 D'. & B. 484 ; 2 Phil. Ev. 312; mandamus to compel the clerk in charge of records to allow a person employed by the board of supervisors to make new indexes for the public use was denied, People v. Welch 10 Hun 535.</p>

Cases made after judgment from Wayne. Garnishment. Spears having recovered judgment before a justice for fifty dollars against Charlotte Issler, garnished Chapman and Mrs. Biley, and took judgments against them, from which they appealed to the circuit court, which affirmed the judgments.

Ejectment. Defendant brings error. Where ejectment is brought for a homestead, the wife is a necessary-party defendant, Hodson v. Van Fossen 26 Mich. 68; Henry v. Gregory 29 Mich. 68; Crane v. Seitz 30 Mich. 453; a boundary acquiesced in for more than twenty years cannot be disturbed (Smith v. Hamilton 20 Mich. 433; Joyce v. Williams 26 Mich. 332; Diehl v. Zanger 39 Mich. 601; Dupont v. Starring 42 Mich. 492; Chapman v. Crooks 41 Mich. 595; Baldwin v. Brown 16 N. Y. 374);…

Bill for accounting, etc. Complainant appeals. Foreign executors coming into the forum are liable to suit for assets received in the foreign jurisdiction, Swearinger v. Pendleton 4 S. & B. 889; Evans v. Tatem 9 S. & E. 252; Bryan v. M’Qee 2 Wash. C. C. 337; Campbell v. Tousey 7 Cow. 64; Julian v. .Reynolds 8 Ala. 680; Blatter v. Canoll 2 Sandf. Ch. 573; Scruggs v. Driver 31 Ala. 274; McNamara v, Dwyer 7 Paige 239.

<p>Appeal from tbe Superior Court of Detroit.</p> <p>Injunction to restrain tax-sale. Bill dismissed. Complainant appeals.</p>

<p>Appeal from Marquette.</p> <p>Bill to set aside deed, and to restrain interference with complainant’s possession of the premises. Defendants appeal.</p>

Assumpsit by Holmes and Webster against Mrs. Bronson upon a contract for a furnace placed by them in her house.

Assumpsit. Plaintiff brings error. Where the execution of a note has not been denied by affidavit attached to the plea in an action thereon the note cannot be avoided by showing lack of capacity to execute it. Civrran v. Rogers 35 Mich. 221; Chic. & N. E. R. R. v. Edson 41 Mich. 673; Boughton v. Manchester Water Co. 3 B. & Aid. 1; Hall v. Auburn Turnpike Co. 27 Cal. 255,

Assumpsit on official bond. Defendants bring error. Sureties are not liable upon an official bond for default in the performance of duties that do not properly belong to the office and were imposed after the bond was given, Pybus v. Gibb 88 E. C. L. 902; U. S. v. Kirkpatrick 9 Wheat. 720; People v. Moon 3 Scam. 123; Reynolds v. Hall 1 Scam. 35; Gompher v. People 12 111. 290; Governor v. Bidgway id. 14; State v. Bobards 7 Rep. 594; Brandt on Suretyship §§ 469, 483.

Trover. Defendant brings error. Trover will not lie against a railroad company for ties placed in the bed of the roadway before the road was delivered to the company, Woodruff v. Adams 37 Conn. 233; Hunt v. Bay State Iron Co. 97 Mass. 279; Strickland v. Parker 54 Me. 263; Cooley on Torts 55.

Nolan, circuit court commissioner. A circuit court commissioner cannot dissolve an attachment unless his order will restore the property to the defendant, Johnson v. DeWitt 36 Mich. 95; Chandler v. Nash 5 Mich. 409; Price v. Heed 20 Mich. 72; Zook v. Plough 42 Mich. 487; the commissioner’s finding cannot stand if it is against the evidence, (Brown v. Blanchard 39 Mich. 790) and the appellate court will examine to see whether the finding is justified by the facts, Jackson v.…

<p>Certiorari to the Board of Supervisors.</p> <p>County seats have been established directly by the Legislature in the following acts: Grand Traverse 141 of 1851; Oceana, 114 (1851); Cheboygan, 20 (1853); Alpena, 65 (1857); Iosco, 130 (1857), 221 (1859); Mecosta, 99 (1859); Muskegon 55 (1859); Mason, 79 (1861); Keweenaw, 118 (1861); Houghton, 128 (1861); Antrim, 78 (1863); Menominee, 163, (1863); Washington, 252 (1867); Osceola, 301 (1869); Wexford, 386 (1869); Clare, 345 (1871); Baraga, 14 (1875); Ogemaw, 132 (1875); by commissioners named in the act.or to be appointed by the Governor in these: Mecosta, 42 (1857); Isabella, 157 (1855); Huron, 6 (1859); Delta, 129 (1861); Kalkaska, 294 (1871); Gladwin, 69 (1875); the Legislature established temporary county seats to remain until removed by the supervisors according to law in the following instances: Alcona, 266 (1869); Presque Isle, 398 (1871); they provided for temporary county seats and withheld jurisdiction over the question of removal for a certain period from the local authorities in the following acts: Gratiot, 16 (1855); Bay, 171 (1857); Missaukee, 336 (1871); Isle Eoyale, 18 (1875); Otsego, 32 (1875); Boseommon, 41 (1875), 137 (1877), 17 (1879); the Board of Supervisors was directed to establish the county seat in the following acts: Emmet, 18 (1853); Midland, 36 (1855); Manitou, 92 (1855); Oceana, Mason, and Manistee, 171 (1855); Charlevoix, 390 (1869); School-craft, 373 (1871); and the electors in the following cases: Leelanaw, 48 (1863); Benzie, 385 (1869); Lake, 357 (1871).</p> <p>The power of the board of supervisors to remove county Seats is recognized in Harrington v. Wands 23 Mich. 385; Att’y General v. St. Clair Supervisors 11 Mich. 63; Att’y General v. Lake Supervisors 33 Mich. 292; they have power to organize new towns from the towns within the county, Const, art. x. § 11; Comp. L. § 480; Scrafford v. Gladwin Supervisors 41 Mich. 647; Att’y General v. Page 38 Mich. 286.</p>

Assumpsit on certiorari from before a justice. Plaintiff brings error. An assignment of a claim to the plaintiff is sufficiently averred in an action before a justice by the indorsement of the assignment on the instrument sued upon, signed by the assignee. Snell v. Gregory 37 Mich, 500; Kelly v. Waters 31 Mich. 404; Draper v. Fletcher 26 Mich. 154.

Injunction. Bill dismissed. Complainant appeals. A corporation organized for the accommodation of the public and enjoying peculiar privileges granted by the Legislature, cannot alienate or mortgage its permanent property •without legislative authority, Richardson v. Sibley 11 Allen 65; a gas company may execute a mortgage to accomplish the legitimate .objects of its creation, Hayes v. Gas Company 29 Ohio St. 330; the consent of municipal authorities is in the nature of a…

Assumpsit. Defendant brings error. as to the carrier’s freedom'from obligation to do more tbpn deliver goods at the destination marked on them, unless there are special directions, cited Wibert v. N. Y. é Erie B. B. 12 N. Y. 245; Nutting v. Conn. B. B. B. 1 Gray 502; Jenneson v. C. & A. B. B. 4 Am. L. Beg. 234.

Bill for accounting. Complainants and defendant Beeldey appeal. An exception to a commissioner’s report after notice of irregularities in the proceeding before Mm, waiyes the irregularity, Tyler v. Simmons 6 Paige 127; Suydam v. Dequindre Walk. Ch. 23; Ward v. Jewett id. 45; Emerson v. Atwater 12 Mich. 323; where exception is taken to an account which contains items of charges, he must specify the specific charges of which he complains, 2 Smith Ch. Pr. 372 ; 2 Dan. Ch. Pr.

<p> Chancery Record. </p> <p>The Court will not disturb a decree dismissing a bill where doeu- . ments on which the rights of the parties depend are not set out in the record or proofs.</p>

<p>Error to Ingham.</p> <p>Trespass on the case. Defendant Cook brings error.</p> <p>A plaintiff cannot notice for trial a case against several defendants only part of whom have appeared, until interlocutory judgment is entered against those who have suffered default, Cuddeback v. Fanely 2 Wend. 624; nor can he discontinue as against them and proceed against the rest without amending his declaration, BaUou v. Hill 28 Mich. 60; Mumford v. Fitzhugh 18 Johns. 467.</p> <p>Where a case is set down for trial at the request of a party he is estopped from objecting to proceed on the ground that some of the defendants have not been served, 1 Burr. Prac. ‘69-71; Hilliard on Remedies for Torts .197 § 15. ‘ '</p>

Trover for the conversion of a quantity of logs by disregarding the vendor’s notice to retain them and by delivering them to the purchaser. Defendant brings error.

Assumpsit. Plaintiff brings error. Payment for goods cannot be enforced unless the order therefor was strictly fulfilled, Clark v. Wright 5 Phil. 439; Smith v. Brady 17 N. Y. 173; Martus v. Houck 39 Mich. 431; Neville v. Frost 2 E. D. Smith 62; Gibson v. Cranage 39 Mich. 49; usage cannot be shown to explain a contract if inconsistent with its terms, Ba/r■nard v. Kellogg 10 Wal. 383.